International Law: General

Most often when practitioners refer to a general international law practice they are referring to “private” international law, involving commercial ventures that affect foreign jurisdictions or transactions that include foreign parties. International law in this sense is not a legal specialty in itself, but suggests the prospect of travel to foreign venues to negotiate deals or resolve commercial disputes, and sometimes the opportunity to live in a foreign country.

The breadth of private international law touches many legal practice areas. U.S. companies have customers and suppliers in foreign jurisdictions. They sometimes license their technology to local business partners and they may seek to limit other use of their intellectual property rights in these jurisdictions. Businesses and investment banks often rely on international capital markets for their financial needs, most recently obtaining capital from sovereign investment funds as well [...]

Most often when practitioners refer to a general international law practice they are referring to “private” international law, involving commercial ventures that affect foreign jurisdictions or transactions that include foreign parties. International law in this sense is not a legal specialty in itself, but suggests the prospect of travel to foreign venues to negotiate deals or resolve commercial disputes, and sometimes the opportunity to live in a foreign country.

The breadth of private international law touches many legal practice areas. U.S. companies have customers and suppliers in foreign jurisdictions. They sometimes license their technology to local business partners and they may seek to limit other use of their intellectual property rights in these jurisdictions. Businesses and investment banks often rely on international capital markets for their financial needs, most recently obtaining capital from sovereign investment funds as well as private investors. Conversely, foreign companies seek access to the U.S. capital markets, and need U.S. counsel’s assistance to offer their securities to U.S. investors. Indeed, in the context of recent international mergers and acquisitions, the client of a U.S. lawyer may as likely be a foreign buyer as a domestic one.

Some international lawyers handle a wide range of transactions, in broad areas of corporate finance, technology licensing or joint ventures, whereas others specialize in international arbitration or regulatory/policy work. Transactional attorneys are often corporate generalists who can handle a variety of deal structures. For example, they may negotiate a U.S. company’s investment in a foreign company on one day, and on the next day they could be structuring a joint development and technology license for U.S. technology that is registered abroad.

Transactional attorneys need a strong grounding in business law, particularly a solid understanding of basic principles of U.S. corporate law and transactions. An understanding of local law and business is also desirable, though lawyers admitted to practice in the local jurisdiction are typically consulted on matters of local law.

International project finance has evolved into a practice discipline in its own right. This practice area involves large infrastructure projects in foreign countries, requiring not only an expertise in business and commercial law, but increasingly an understanding of energy law and climate change issues. (See ENVIRONMENTAL LAW.) U.S. attorneys working with international project finance often represent multiple foreign parties among the investors and developers, including quasi-commercial agencies of foreign governments. U.S. lawyers rely on their expertise in U.S. law and they rely on local lawyers admitted to practice in the local jurisdiction for advice on non-U.S. law.

Key skills and characteristics for a successful transactional practice with an international focus include:

• Ability to communicate effectively and persuasively, both in writing and verbally, often to others who do not speak English natively or fluently

• Foreign language skills are a bonus (although not always a requirement as many international transactional documents are prepared and negotiated in English)

• Listening skills (ability to understand the client’s business goals and business risks, often in a time-pressured situation)

• Ability to prioritize numerous moving parts of a transaction

• Ability to create rapport and build relationships

• Negotiation skills

• Attention to detail without losing sight of the big picture

• Ability to spot critical issues and raise such issues promptly with internal team and/or client

• Organization skills to plan and execute details of transactions and anticipate problems

• Creativity and problem-solving skills (finding viable solutions to problems with no precedent)

• Flexibility (both in the type of transactions to be worked on and in the time of day for international conference calls)

• Patience in dealing with local customs and practices

The dramatic increase in international transactions has created a corresponding increase in disputes. A growing number of lawyers in large U.S.-based firms represent foreign parties or handle cases involving some aspect of foreign law. Although U.S.-trained “international” lawyers tend to litigate in U.S. courts, they are generally well-versed in alternative dispute resolution methods. Disputes that are not resolved by negotiation either end up in a court room or, more typically, before an arbitral tribunal, since many cross-border contracts have clauses mandating arbitration or mediation to settle disputes.

In the past three decades, the context for some international disputes has become increasingly complex. Both private and public disputes can be multi-national and multi-jurisdictional. In addition, the interaction between private and public forces has become a key factor in many major international business matters. U.S. laws, such as the Foreign Sovereign Immunities Act and the Foreign Corrupt Practices Act, strongly impact American businesses operating abroad. Similarly, U.S. boycott and embargo regulations, as well as treaty obligations, have substantive foreign policy and business impacts. Accordingly, a lawyer who practices international litigation or arbitration, whether U.S. or foreign-based, has to be able to understand and operate in a complex and often politically charged environment.

An attorney practicing arbitration of international disputes needs the usual general skills – an understanding of commercial transactions and business law, listening skills, the ability to collect, collate and analyze facts, strong writing and advocacy skills, and the ability to work as part of a team. General litigation experience will also be useful in sharpening skill sets in this practice area, such as the basic work of conducting document reviews, legal research and writing, and learning the art of standing up in a courtroom.

Firms with significant international law practices tend to be located in international financial hubs, like New York, London, Tokyo, Beijing or Buenos Aires. In recent years, many U.S. firms have greatly expanded their foreign offices in these and other big cities. Whereas there used to be only a few attorneys in a firm’s foreign office, there are now some foreign offices that have more attorneys than some domestic offices. Some firms in U.S. cities other than New York have developed an international practice with a focus on a particular region, such as Miami’s orientation toward business in Latin America, or the focus on Asia for firms on the West Coast (e.g., in Los Angeles and San Francisco). Given the differences in laws and business practices in geographic regions as diverse as Latin America and Asia, individual attorneys in these firms tend to concentrate on a specific region in addition to developing expertise in a particular practice area. International business lawyers may also develop expertise in a particular industry sector, and may be found in corporations with foreign subsidiaries or joint ventures, or in financial institutions, accounting or consulting firms that have global business operations.